Abusing complaints process to advance agendas

Health professionals are unfairly victimized when individuals or groups use a health professional’s College’s complaints process to advance their own agendas, says Toronto health lawyer Lonny Rosen, but they have little choice but to respond to the complaint, as the process for disposing of a complaint summarily is slow, often cumbersome and takes as much time as responding to a complaint on the merits.

“All Colleges have the means to dispose of a complaint on the basis of it being frivolous, vexacious, moot, made in bad faith or an abuse of process, but the procedure for doing so is almost as involved as the process for responding to a complaint on the merits,” he tells AdvocateDaily.com.

Rosen, partner at Rosen Sunshine LLP, says health Colleges have recently seen a number of unfounded complaints made against health professionals in order to further the complainants’ own ends, such as complaints by doctors in the weight loss industry against their competitors in order to gain an advantage, or complaints by advocacy groups against a health professional whose views they oppose.

One false complaint that became a high-profile case in the media was about a Toronto doctor who employs the traditional Jewish practice of orally sucking blood from a baby’s penis following circumcision. He has been cleared by the Inquiries, Complaints and Reports Committee (the “ICRC”) of the College of Physicians and Surgeons of Ontario after an anti-circumcision activist filed an official complaint accusing him of religious bias and “sexual motive,” reports the National Post.

“The ritual of orally suctioning blood from a circumcision wound, sometimes through a plastic tube, is known as metzitzah b’peh and is practised almost exclusively among Orthodox and ultra-Orthodox Jewish circles,” says the article.

The decision of the ICRC was confirmed by the Health Professions Appeal and Review Board, the body that reviews decisions of health professional colleges in Ontario. The Board’s decision states: “There is no information to support the … contention that there was a sexual motive to the method by which the [doctor] performed ritual circumcisions.”

The Board ultimately found that the original complaint, which was linked to a Seattle-based anti-circumcision group, was obviously meant as “a broadsided attack on the practice of circumcision,” says The Post.

Rosen says the advocacy group waged their battle by using the College’s complaints process and asked the College to sanction a doctor who performs circumcisions as part of a campaign to reduce the prevalence of circumcision.

Unfortunately, says the lawyer, the health professional’s College (and specifically its ICRC) is required by its governing legislation, the Regulated Health Professions Act, 1991 (“RHPA”) and the Health Professions Procedural Code, which is Schedule 2 to the RHPA, to investigate all complaints filed with the Registrar regarding the conduct or actions of a member.

He further explains that the ICRC, after considering a complaint to be frivolous, vexatious, made in bad faith or otherwise an abuse of process, has to give the complainant and the member notice even when it plans to take no action in respect of it. Then the complainant and the member have the right to make written submissions in respect to that notice.

“For this reason, it is often no less onerous for a member to just respond to the complaint than it is to ask the panel to take no further action on the basis that the complaint is frivolous or vexatious,” he says. “In my experience, College Committees are reluctant to take this action except in the clearest of cases, especially since complainants can still ask the Health Professions Appeal and Review Board to review a decision to take no action with respect to the complaint.”

When faced with a complaint from a patient, or even from someone else (such as a member of the patient’s family, a colleague, or any other person), health professionals typically review the complaint, think about the interaction(s) or situation that gave rise to the complaint, and review their notes and records relating to the patient (where applicable), and then discuss these with their counsel, the lawyer notes.

It’s important that health professionals obtain the assistance of a lawyer before responding to a complaint, says Rosen.

“Often, a member must respond to what may seem to be a meritless complaint, and there is no recourse through which the member can seek compensation from the College for the expense, time and trouble associated with responding to same,” he says.